A preliminary notice is integral to the mechanics lien process. Preliminary notices, called a Notice to Owner in the state of Florida provide an opportunity for parties up the chain to understand who all is working on the project and what each notifying party’s roll will be on the project. They’re often one of the first forms of communication shared on the project after the contracting phase, and may even represent the first communication that a contractor has with their subcontractor’s subs and suppliers.
But preliminary notices are for more than just exchanging information, they’re often a prerequisite to filing a mechanics lien. Where required, failure to send preliminary notice will derail a mechanics lien claim before it even gets started.
In the state of Florida, the preliminary notice is called the “Notice to Owner.” But here’s an important question for people in the construction business in Florida — is there ever a situation that would require multiple Notice to Owner documents to be sent on the same construction project? And if so, then what kind of project might require more than one notice?
Florida: Will Multiple NTO’s Be Required?
First, let’s look at the Notice to Owner (NTO) requirement. A Florida Notice to Owner is required as a result of § 713.06(2)(a), which states that an NTO is “a prerequisite to perfecting a lien under this chapter and recording a claim of lien…”
Since an NTO is sent primarily to preserve lien rights, whether or not multiple NTO’s will be required will be directly related to whether multiple liens would need to be filed.
Making things more interesting, § 713.09 of the Florida mechanics lien statute allows for one single claim of lien when labor, services, or materials were furnished for more than one improvement under the same contract, even if the improvements span separate lots, parcels, or tracts of land as long as they’re owned by the same owner.
That may have been a little confusing, so let’s break it down as follows:
>IF work spans multiple lots, parcels, or tracts of land, one lien (and therefore, one NTO) may still be acceptable, IF there is only one prime contract, AND IF the property is all owned by the same owner.
>IF there’s more than one owner, or if there is more than one prime contract, you’ll want to send multiple NTOs. Even if not necessarily required, it’s the safest way to proceed. Plus, the cost of sending an extra NTO pales in comparison to the potential cost of losing lien rights.
Keeping the above in mind, let’s look at three hypothetical project scenarios that might create issues or confusion.
Project Scenario 1 – A Development Project
Development projects are typically set out under one development or prime contract, and prior to construction, the property is usually owned by one party. This could get tricky, though, if the land is divided and distributed to more than one owner. But, if the property is owned by one party and there’s only one prime contract on the project, one NTO should do the trick.
Bottom Line: One NTO should do the trick for a typical development project – as long as ownership hasn’t been divided yet.
Project Scenario 2 – A Condominium Project
Condominiums might present more of a headache. Again, the underlying ownership and contractual relationships will determine how many NTOs must be sent. If the condominium units are truly individually owned, work for any individual unit will require it’s own claim. Further, regardless of who owns the unit(s), if work was done pursuant to more than 1 prime contract, a separate lien would be required for work done on under each prime contract. Sometimes, condominiums will only have 1 true owner and the unit “owners” will actually only own a right to use or inhabit the unit (rather than owning the underlying property). In such a situation, a project will be treated as having one owner.
Again, the rule is that one single claim of lien may be made when labor, services, or materials were furnished for more than one improvement under the same contract, even if the improvements span separate lots, parcels, or tracts of land as long as they’re owned by the same owner. If work is done on multiple lots, parcels, or tracts and the above does not apply, sending multiple NTOs may be necessary.
Bottom Line: There’s a chance that multiple NTO’s may be required on a condominium project, depending on ownership situation.
Project Scenario 3 – An Apartment Building Project
Apartment buildings should be a little easier. Apartments are typically owned by one party, so ownership shouldn’t be a major issue. Of course, if work is commissioned by a lessee instead of an owner, there are a number of factors that could result in no lien rights for a project. However, whether work is done pursuant to one prime contract is still a concern. If work is done on multiple properties (separate lots, parcels, or tracts of land), and work has been done pursuant to more than 1 prime contract, multiple liens will be required (meaning multiple NTOs will also likely be required).
Bottom Line: There’s a chance that multiple NTO’s may be required on an apartment project, depending on the contract(s).
Other Things to Consider
Here’s something to consider: General contractors aren’t required to send NTOs in Florida, right? Wrong. Well, sort of wrong. Allow me to explain…
Parties in direct contract with the owner don’t have to send an NTO. However, when dealing with an apartment, condo, or other development, there are often middle men between parties who consider themselves “general contractors” and owners. On development projects, it’s not uncommon for the owners of the property to hire a developer and for that developer to then hire a general contractor to oversee the project. On condos and apartments, apartment associations or agents are often in charge of hiring a party to perform construction or repair work. Thus, when a general contractor has contracted with one of these middlemen, that GC may need to send an NTO to preserve lien rights.
Another thing to consider that notice to owner is not required for liens that qualify as “subdivision improvements” under § 713.04 of the Florida mechanics lien statute. Subdivision improvements refer to lienors who perform services or furnish material to real property for the purpose of making it suitable as the site for the construction of an improvement or improvements.
That includes, but is not limited to, “grading, leveling, excavating, and filling of land, including the furnishing of fill soil; the grading and paving of streets, curbs, and sidewalks; the construction of ditches and other area drainage facilities; the laying of pipes and conduits for water, gas, electric, sewage, and drainage purposes; and the construction of canals and shall also include the altering, repairing, and redoing of all these things.”
Of course, the best idea is to play it safe and send an NTO anyway.